By Olalekan Joshua, Lagos
The Lagos Division of the Court of Appeal has struck out an application brought by the Lagos State Government seeking an injunction to suspend use of hijab by Muslim female pupils in public schools across the state.
A three-man panel of the court comprising Justices M. L. Garba (presiding), J. S. Ikyegh and U. Ogakwu, gave the ruling because of a pending appeal by the state at the Supreme Court.
The justices were unanimous in their agreement with the state that the apex court was the proper place for the application to be heard.
Last July 21, a special five-man panel of the appellate court voided the 2014 verdict of a Lagos High Court, which outlawed the wearing of hijab by the pupils.
The state, last September 16, filed an application at the Court of Appeal seeking an injunction for a stay of the judgment, pending the determination of an appeal it had filed at the Supreme Court.
Counsel for the state government, Mr Hameed Oyenuga who is a staff of the Directorate of Civil Litigation Department, informed the court that the injunction was applied for before the state appealed the judgment at the apex court.
He applied that the application be forwarded to the Supreme Court so that it could be heard alongside the appeal.
“We are asking that the application be forwarded or transmitted to the Supreme Court. We have forwarded our return argument to the Supreme Court, but we are yet to ascertain whether it has been entered,” Oyenuga said.
Counsel for the first, second and third respondents, Mr H. T. Fajimite did not object.
The court agreed that the Supreme Court should hear the application, but observed that for that to happen, the application had to be withdrawn or struck out at the appellate court
Justice Garuba said: “An appeal has been entered at the Supreme Court, you can’t expect us to transmit it to the Supreme Court. You have to withdraw the application. The application before us has to go. The application is hereby struck out.”
Speaking after the ruling, Fajimite said the ruling implied that there was no more restriction on the use of the hijab.
“Before now we were conceding to the fact that once an application has been is filed, for instance in terms of an application for injunction pending an appeal or stay of execution of a judgment, we are constrained or obliged to respect that action and refuse to exercise our right under the judgment that we have won.
“That application is now gone and from this moment, no such restriction, nothing is stopping any Muslim student from using hijab for now.”
In a unanimous decision on July 21, a special five-man panel presided over by Justice A.S. Gumel held that it would amount to discrimination on religious ground if the pupils were disallowed to wear hijab.
The appeal was filed by two female pupils of Atunrase Junior High School in Surulere, Asiyat Kareem and Mariam Oyeniyi, under the aegis of the Muslim Students’ Society of Nigeria (MSSN), Lagos State Area Unit.
It followed the dismissal of their suit by Justice Modupe Onyeabor of the Ikeja High Court on October 17, 2014, which challenged the government ban on hijab use in public schools.
In the lead judgement Justice Gumel held: “The wearing of hijab is an Islamic injunction and also an act of worship,” hence it will constitute a clear violation of the appellants’ constitutionally guaranteed rights to stop them from wearing thehijab in public schools.”
Resolving all the five issues raised in favour of the appellants, the appellate court held that the lower court erred in law when it held that the hijab ban is the policy of Lagos State Government (respondent).
It noted that no circular was presented before the lower court to show such a policy existed, adding that “he who asserts must prove”.
The court observed that if there was such a policy, it should have emanated from the House of Assembly and not the Executive Arm of government.
It held that the fundamental human rights of female Muslim pupils as enshrined in Section 38 (1) of the 1999 Constitution was violated by the respondent.
The appellate court dismissed the govrnment’s argument that it made an exception by allowing the pupils to wear hijab during prayers.